Petition for Review of Decision of the Department of Employment Services, Hearings and Adjudication Section.
Before Ferren and King, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: This case (Francis II) presents the question whether the Hearings and Adjudication Section (H&AS) of the Department of Employment Services (DOES) had jurisdiction over a request for modification, pursuant to D.C. Code § 36-324 (1993 Repl.), of a previously issued compensation order (Francis I) when that order was still on appeal to the agency's Director under D.C. Code § 36-322. We hold, on the particular facts of this case, that H&AS did not have jurisdiction. The modification relief requested in Francis II was not entirely severable from the order on appeal in Francis I H&AS ruled in Francis II, for a second time, on at least one issue (authorization of surgery) that was still pending appeal to the Director in Francis I The claimant (intervenor here) had not requested a remand of Francis I from the Director to H&AS, as permitted under D.C. Code § 36-322, for consideration of additional evidence before issuance of the Director's final decision. Nor has the Director made a final decision in Francis I, which we conclude is required before H&AS has jurisdiction under § 36-324 to modify any issue covered by the compensation order in Francis I. In sum, absent a Francis I remand or final decision under § 36-322, taking the case from the Director's hands, H&AS had no jurisdiction to modify under either § 36-322 or § 36-324. We therefore must reverse and remand for an order vacating the compensation order in Francis II.
On July 24, 1989, intervenor Lloyd R. Francis was injured while working as a nurse at Georgetown University Hospital. He filed a claim for relief under the District of Columbia Workers' Compensation Act of 1979, D.C. Code §§ 36-301 et. seq. (1993 Repl.). In this initial claim, Francis sought (1) temporary total disability from March 29, 1990 to May 7, 1990, (2) temporary partial disability from May 8, 1990 to the present and continuing, and (3) authorization for surgery. H&AS held a hearing on October 18, 1990. The hearing examiner issued a decision on March 22, 1991 (Francis I) denying all requested relief on the ground that Francis's injury suffered at work "had resolved" before commencement of the period for which Francis sought compensation, and thus "the wage loss suffered by claimant not related to his work injury of July, 1989."
On March 27, 1991, five days after the examiner's decision, Francis had surgery on his back. A few weeks later on April 19, 1991, Francis appealed the examiner's order in Francis I to the Director of DOES. (As of the date, almost four years later, when Francis II was argued in this court, the Director had not yet issued a decision in Francis L).
After filing his administrative appeal in Francis I, Francis obtained written evidence that the surgery had revealed the existence of a herniated disk on the right side as the cause of the pain in his right leg. In light of this new evidence, Francis filed a request with H&AS, pursuant to D.C. Code § 36-324 (a)(1), for modification of the Francis I order "based on a change of condition of a pre-existing condition". *fn1 In this Francis II request for modification, Francis sought (1) temporary total disability benefits from March 25, 1991 and continuing, and (2) the medical expenses of his back surgery. On September 13, 1991, H&AS held a hearing on the request for modification and, on February 19, 1993, issued an order granting Francis the requested relief.
The hospital appealed the Francis II order to the Director. *fn2 After the Director failed to issue a decision within 45 days, the hospital appealed to this court pursuant to D.C. Code §§ 36-322 (b)(2),-(6)(3).
Before analyzing this particular case, we summarize the portions of the statute at issue here.
D.C. Code § 36-322 provides for review of H&AS compensation orders by the "Mayor" (in practice, by the DOES Director). Pursuant to § 36-322 (a), an order becomes final 30 days after it is "filed with the Mayor" unless, pursuant to § 36-322 (b)(2), a party files an appeal with the Director during that 30-day period. If the Director does not decide the appeal within 45 days, the compensation order is deemed a "final decision" for purposes of allowing a party to appeal the compensation order to this court. See D.C. Code §§ 36-322 (b)(2),-(b)(3). Absent such appeal, the compensation order is not final until the Director rules. See id. § 36-322, (b)(2) ("If a final decision is not rendered within such 45-day period the compensation order shall be considered a final decision for purposes of appeal pursuant to paragraph (3) of this subsection.") (emphasis added).
While the compensation order is on appeal to the Director, any party may seek a remand to H&AS "for further appropriate action." D.C. Code § 36-322 (b)(2). Specifically:
If any party shall apply to the Mayor for leave to adduce additional evidence and shall show to the satisfaction of the Mayor that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the initial hearing before the Mayor, the Mayor may order such additional evidence to be taken and to be made a part of the record. The Mayor may modify his [or her] findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole. The Mayor may modify or set aside his [or her] original order by reason of such modified or new findings of fact. The application by a party for leave to adduce additional evidence shall stop the running of the 45 day period in which a decision by the Mayor must be rendered. If the Mayor remands the case, any party may apply for review within 30 days from the date a new compensation order is filed. A final decision must be rendered within 45 days from the date of the application for review of such new compensation order, and if not rendered within such period, then upon expiration of the 45 days such new compensation order shall be considered a final decision for purposes of [appealing the new compensation order to the District of Columbia Court of Appeals pursuant to] paragraph (3) of this subsection . . . .
Id. (emphasis added). This procedure is clarified in the regulations, which indicate that the Director (not the Mayor) is responsible for deciding whether, upon application, to remand the case, and that the Director's remand sends the case, once again, to a ...